01 January 2017

NZ Returnees

From the 17 November 2015 Second Reading Speech regarding the Returning Offenders (Management and Information) Bill, passed as the Returning Offenders (Management and Information) Act 2015 (NZ) -

In this slightly unusual situation, where we are having the second reading immediately following on from the first reading, I do not propose to do what I would normally do in a second reading debate and go through in some detail a number of the matters that I set out in my first reading contribution. Instead, what I want to do is take the time to expand further on some of the rationale for the structure of the bill and the way it will operate, to provide the House and anyone following this debate with a little bit more context around that. Then I do want to touch on some of the allegations that have been made around what is perceived as delay, and I can assure the House that there absolutely has not been.

So if we start with the operation of the bill, I said in my first reading contribution that the bill is about trying to replicate as closely as possible—and I do not pretend that it is an exact replication—the sort of supervision and management of offenders that they would likely have been subject to if they had served the same sentence in New Zealand. The reason it is not an exact fit, and the reason that it has been very complex to work through these policy matters, is that, of course, you are dealing with a regime that needs to apply in a blanket way and yet be very careful to not traverse unfairly on the rights and the provisions of natural justice and the rule of law in respect of the returning offenders; have the right sort of oversight in place; and also provide the flexibility to seek additional specific conditions when that is needed, in the absence of the mechanism that is normally used in New Zealand, which is the Parole Board.

So it is very easy, I think, at this stage, when all that work has been done, to look at the framework and say: “Well, you know, you could have banged that out sooner.” But the reality is that we were having to spend far too long—far too long, actually—negotiating with Australia to get the right information, so we could assess the type of people coming back; the risk profile; the sort of information that anyone who has been a Minister will understand you absolutely must have before you can work through any of the processes the Cabinet Manual requires around quantification of the impact of the changes you are proposing and the cost of them; making sure we had the budgetary provisions in the Cabinet paper to make sure it was adequately resourced; and getting all of the appropriate components that you have to be able to certify, as a Minister, when you are bringing proposals for a new policy to Cabinet and then to this House. To do all of that, as I say, it was a matter of working with corrections and with police, but they really could not even begin to do their work until Australia had stepped up and provided us with this information.

I have said publicly, and I will say here again in the House, that I am disappointed that we, as a close neighbour and for a long time a close friend of Australia, found ourselves in the position where the impact on New Zealand was brought to my attention first in February of this year. What that meant was that New Zealand found itself starting from a completely cold start once the law was already in operation. That is not ideal, that is not the way that we expect to deal with Australia, but that is the position we were in—that is the position I was in.

I think we responded in an absolutely timely way. My officials have confirmed that the first advice that ever came in front of me—it was certainly not mentioned in the briefing to the incoming Minister; it was not mentioned in any briefings at the time—was on 12 February. At that point I instructed them to begin work immediately on this framework. The suggestion that some members of this House have made that somehow that is all just a bit of precursor fluff and the work actually starts when you start drafting, I think reflects a lack of understanding of the process. Drafting is the end of the process.

I want to commend and pick up on the comments that my colleague Chris Bishop made when he commented on the section 7 New Zealand Bill of Rights Act report by the Attorney-General. I would say this, but I think he is absolutely right. These are issues that could so easily have gone one step too far in terms of the New Zealand Bill of Rights Act issues, or, equally, one step too light in terms of protection. We have ensured that we did everything we could to land it in an appropriate place. Yes, the bill has continued to evolve, particularly with the news that came through to us in the last few days around this large number of offenders who are on their way back, where Australia has not given us advance notice and has not given us a lot of lead time with the information. That information has been followed up on. Given that that is now a new development in the way these processes are flowing—and it was certainly not mentioned in any of the briefings—we have continued to make sure that that is as tightly provided for in the bill as we can.

I mentioned that the bill, effectively, replicates a parole framework. What that means is that if you have been—not you. If the offender—sorry, Mr Assistant Speaker; it certainly would not be you. If the offender has been released from custody in the overseas jurisdiction—and can I just get on record, very clearly, that although a lot of the debate is around Australia, and that is absolutely the source country for the vast majority of the people whom this bill will touch, it is not the only country. This bill applies to anyone deported to New Zealand, from any jurisdiction—we just have to bear that in mind. The framework applies when the offender is released within 6 months of their return and released from custody, and that definition of “in custody” very clearly also covers any time they spent in detention centres.

The reason for that is that what these conditions are about, whether they are applied in New Zealand or under this bill, is helping to oversee the highest-risk period for an offender, which is the time when they are first released from prison. The longer they have been in prison, the harder that reintegration is, and therefore the longer the monitoring tends to occur. It is not a punitive attack on the offender; it is about making sure that someone who has been in an institution and under very strict rules for a long period of time is carefully monitored and watched for offending behaviours and for the assistance they will require as they reintegrate. If someone has served an offence in Australia, for instance, and has been living and working and going about their business in Australia for some time, it would not be appropriate to then turn round and impose those sorts of oversight conditions. If, however, they have only recently been released, then we absolutely need to be tracking that sort of behaviour.

The bill then goes on to provide that there is recognition that, although we have an automatically applying framework, some offenders will require a more directive, more restrictive set of conditions. Their offending will justify that. In that case, the conclusions that I reached through that policy development process were that it would be quite inappropriate to try to provide for that in this legislation. The risk of getting it wrong, one way or the other, was simply insurmountable. So what the bill provides is that in that instance there are whole new powers to go to the District Court, and have the District Court act in lieu of a Parole Board to make the case by case assessment as to when those additional, more restrictive conditions are required.

The final piece is the collection of information. I want to pick up on the comments Metiria Turei was making in the first reading around the definition of “identifying particulars”. We did have a good discussion, for which I thank her, on this point. She had picked up a concern that I was also considering at that time, which was just saying—had that actually gone too far? Had the information that the police had asked us to provide for—was it too much, in that they did not need it? Actually, I felt that it was a fair point. We went back and looked at it, and agreed that actually narrowing that down to the definition in the Policing Act was appropriate. But let us not cast aside how critical it is that we have that information. There is every prospect that as offenders are returned to New Zealand, and we get their biometric details and the like, we might find some cold cases, unsolved in New Zealand, now resolved. We do not know that, but I would not be the slightest bit surprised if that is the case. It certainly means that that information will be held in the same way it would be if they had been serving sentences here.

The last point I want to make in this contribution is just really to inject a little bit of a calm note, I guess, into what has become at times—not in this House, where I think the debate has generally been reasonably constructive—but actually in some of the media commentary there has been a degree of almost hysteria. Let us remember that we release people from our prisons in New Zealand every single day. These are people, whether they have served their sentence in New Zealand or Australia, who have been sentenced and have served their sentence, and, actually, in our system of justice and in most systems of justice around the world, when you serve your sentence you return to the community. That is the reality.

So all this hysteria about “There’s murderers walking around. There’s rapists walking around.”—actually, every single day we release from New Zealand prisons people who have committed serious offences. These people are in the same category. So let us not overblow this. Let us not suggest that somehow the public should be battening down the hatches. It is actually still a relatively small number of people, compared with the New Zealand population, and the same sort of people, and the same sort of conditions that happen in New Zealand. Yes, it is important that we have a commensurate regime in place, but let us not suggest that somehow the bogeyman has landed and it is the beginning of the end. We need this legislation, but I think some of the hysteria from some quarters of the media has been unhelpful. With those words, I commend the bill at its second reading.

In response the Labour spokesperson stated

I want to respond to an issue that has come up across the House during the initial first reading of this bill. That question has been that we somehow, as a party, are not able to critique the speed of this legislation and the timeliness of it because we have had offenders from Australia deported into New Zealand under a Labour Government. We also had Australian offenders deported here to New Zealand under a National Government before that. No one has ever argued that we have not had a regime that allowed, legitimately, New Zealand citizens to be deported to New Zealand. What has changed under this Government, in recent times, is that an amendment was made to Australia’s immigration Act that has led to a significant increase in the number of people being deported here—significant. In fact, from what I have seen, it is up to five times per month the number of offenders than we have seen in the past. So the scale has changed significantly.

The second thing that has changed is that, finally, New Zealand was able to negotiate an information-sharing arrangement, which allowed a monitoring regime to be put in place—pretty critical if you are going to undertake this piece of work. Things are not the same as they were 7 long years ago, when Labour was in Government, so I think it is probably not necessarily the legitimate point of debate that members on the other side of the House would like it to be.

Like the Minister Amy Adams, I think this is an unusual second reading speech, given that it is immediately after the first reading. Usually at this time we would have a conversation about the changes that have been made at a select committee. I want to use this opportunity to just highlight, again, that it would have been useful if we had—as Metiria Turei and as David Parker have mentioned—a dual-track process that would allow this stopgap law to be put in place, but we allowed for parliamentary consideration and a new regime to replace this law in a year’s time. If you look at the regulatory impact statement—under external consultation, 3.6: “In the time available only New Zealand Police, the Department of Corrections, and Crown Law were consulted on drafts of this bill.” I know, given the short time frame—we were being consulted right up to this morning on some changes—that that consultation would have been relatively rushed. There was no Law Commission, no Law Society, no Parole Board, no PILLARS—groups that always bring to the table substantive and useful arguments and critiques of this kind of legislation. Again, I want to make that point: we still could have been debating a dual-track process, the public still could have had their say, and that would have been highly desirable.

I want to use my second reading speech, though, to highlight some of the issues that we are likely to spend a bit of time critiquing in the Committee stage, the first of which is the fact that we will keep making references to detention centres, despite the discussion between the member Kelvin Davis and the Deputy Speaker in the first reading where the Deputy Speaker requested that we stop referring to detention centres. I would like to point out to the Deputy Speaker that under clause 17(3) of the bill, there is reference explicitly to immigration facilities, because for the purposes of this bill they count as incarceration. And, as defined by the Minister, individuals who are released from prison and have 6 months outside of prison custody technically should not have elements of this bill apply to them, unless that 6 months includes a turn in a detention facility. And why? It is because you are not, therefore, mimicking someone who is reintegrating into a community, because you are still incarcerated. A detention facility is incarceration. Therefore, it has the dual act of meaning that your liberties are removed from you for longer, and the double whammy of meaning that you will be monitored for longer as a consequence. And yet you have absolutely no control over that period of incarceration. So it is a dual injustice, as it were, in terms of how this bill would then apply to you. So we think it is absolutely right that we are able to talk about incarceration in detention centres as part of this legislation, and what defines, of course, that incarceration, and what people are enduring in those facilities.

The second issue that we will be drawing on in the Committee stage is the appropriate application of the law as it relates to the gathering of offenders’ information. I want to thank other members who have raised instances, in the development of this bill, anywhere in the legislation where we have seen the law go beyond what we would consider to be reasonable. Our bar for what is reasonable is what we have already passed through due and thorough process in the New Zealand Parliament already. So if we are, for instance, putting in place a regime that is more stringent in terms of who is required to give a bodily sample that goes beyond our existing bodily samples legislation, then we would consider that to be unreasonable. If it asks for the police to gather more information than would currently be the case for someone who was being paroled, we would consider that to be unreasonable. And that is where we need to critique as well. The legislation sets out the time for which a person could be detained in order to hand over those samples and hand over that information. Again, we need to check that it mirrors exactly requirements in the current existing New Zealand law, because at least that law has gone through a thorough process.

It is probably right to point out that I am advised that where the New Zealand Bill of Rights Act vet falls down is around bodily samples, and that that is because of existing bodily samples legislation having failed that New Zealand Bill of Rights Act vet when it initially went through. But, again, that is something we will be looking at during our second reading.

The third point that we will be focusing on during the Committee stage is the dual regime that is set out in subpart 2 of the bill, because this is where the bill applies to both sets of categories of individuals—returning offenders and returning prisoners. Our concern is that between those two groups there is the potential for some gaps to emerge, and that those gaps, actually, could emerge at the higher end of offending rather than the lower end. And I want to just delve into that a little bit now. For instance, in the bill under clause 16, it defines who is a returning prisoner: “A returning prisoner is a person who has been determined by the Commissioner to be a returning prisoner in accordance with the criteria set out in section 17.” Clause 17 then goes on to define that “The Commissioner must determine that a person is a returning prisoner” if they have “(a) … been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and (b) has, in respect of that conviction, been sentenced to (i) a term of imprisonment of more than 1 year;” or cumulatively more than 1 year, and “(c) is returning or has returned to New Zealand within 6 months after his or her release from custody during or at the end of the sentence.” Then it goes on, for the sake of clarity, to point out that custody does indeed include immigration facilities.

So we have here a default regime. Basically, if you are in prison for an offence of a certain period of time and you come out, you are immediately stuck in a detention centre, and then you are shipped to New Zealand, automatically you will have a monitoring regime applied to you. What if, however, you are released into the community for 6 months and then come out? You could have a life sentence and be in that category. Well, then we are reliant on the regime that applies to returning offenders. That regime requires the Department of Corrections to make an application within a specified period of time to the courts to have your parole conditions as they were in Australia—to apply to have a similar regime to apply to you here in New Zealand.

We are relying on the department to be quite spry under these circumstances, and it could well be that those whom we wish them to be spry about have committed a range of offences that we would consider to be high end. We know from the information that we have seen in the regulatory impact statement that, for instance, we have already had since 2013—15 percent have been offenders with rape or sexual assault offences, and 5 percent with murder and manslaughter. And, yet, how many extended supervision orders has the Department of Corrections applied for when for the last 2 years we have had people in those high categories—how many? Not one. So we will use the Committee stage to delve into whether or not a system that is relying on a department that is struggling will deliver the outcomes that New Zealanders desire.

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